Domestic Intelligence: New Powers, New Risks

The Attorney General’s Guidelines for Domestic FBI Operations tip the scales too far in favor of relatively unchecked government power, allowing the FBI to sweep too much information about too many innocent people into the government’s view. In so doing, they pose significant threats to Americans’ civil liberties and risk undermining the very counterterrorism efforts they are meant to further.

Introduction

Successful domestic counterterrorism policy is vital to keep the homeland safe. In this effort, policymakers must resist the oft-exhibited tendency to overreact to the threats we face. This overreaction, time and again, takes a similar form: In the face of a perceived existential threat, we expand the scope of the government’s powers while simultaneously diminishing oversight of and accountability for the use of those powers. We fail to ensure that these powers will be employed in a manner consistent with our fundamental values. Civil liberties—such as privacy and freedom of expression, association, and religion—are often curtailed. In the wake of 9/11, government action exhibited this tendency across a wide range of counterterrorism policies.

To his credit, President Obama acknowledged this overreaction in several areas, implementing much-needed modifications to inherited policies, which improved procedural protections, guarded against civil liberties violations, and increased transparency. But in many respects, the Obama Administration’s counterterror efforts resemble those of the Bush Administration’s second term. This is especially true in the context of countering domestic terrorism threats.

One key example: The Obama Administration’s choice to rely upon rules drafted by its predecessor to increase the FBI’s authority for domestic investigations, including probes into terrorist threats. We believe these rules, known as the Attorney General’s Guidelines for Domestic FBI Operations, tip the scales too far in favor of relatively unchecked government power, allowing the FBI to sweep too much information about too many innocent people into the government’s view. In so doing, they pose significant threats to Americans’ civil liberties and risk undermining the very counterterrorism efforts they are meant to further.

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KEY FINDINGS

The Attorney General Guidelines’ Evolution

The Guidelines function as the primary constraint on the FBI’s operations. Initially implemented in response to perceived domestic-intelligence-collec¬tion abuses by the FBI, they represented an effort to reject the pre-guidelines practice of broad intelligence-collection activities unrelated to crimes or threats and instead to treat domestic threats as a facet of criminal law enforcement. The purpose of the original Guidelines was thus to constrain the FBI’s intelligence-collection role within acceptable bounds, to prevent it from interfering unduly in the lives of law-abiding groups or individuals, and to tether the FBI’s activities to the detection and prevention of crime.

But over time, and especially in the wake of perceived domestic intelligence and crime prevention failures, the lessons of history seem to have faded. Successive sets of guidelines, while expanding the breadth of their coverage, have loosened restrictions on FBI operations. This loosening is exhibited in four trends:

Expansion of the FBI’s domestic-intelligence-collection and analysis role;

Relaxation of the standards required needed to engage in investigative activity;

Reduction in both obligatory and discretionary limits on the intrusiveness of investigative techniques; and

Fewer oversight and supervisory approval requirements.

The Risks Created by Expanded FBI Authority

Lessons of the FBI’s history teach us that in our pursuit for security, the absence of sufficient oversight and limitations on intelligence-collection activities results in threats to civil liberties. There are four ways in which such threats are likely to manifest in light of the current Guidelines:

Increased intelligence-collection powers will likely lead to undue intrusions into the privacy of law-abiding Americans.

Anecdotal evidence suggests that the Guidelines already have chilled First-Amendment-protected activity, and they likely will continue to do so.

Perceived profiling by the FBI’s counterterrorism agents will alienate certain communities, thus rendering them less willing to cooperate with law enforcement.

The Bureau is unable to analyze effectively the information it has collected because there are such vast volumes of information unrelated to indications of wrongdoing or threat.

In the face of these possible adverse effects, the executive branch has yet to articulate persuasively any countervailing op¬erational considerations that would justify retaining the most recent changes to the Guidelines.

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RECOMMENDATIONS

Oversight Recommendations

Both Congress and the Justice Department should act to ensure vigorous oversight of the Guidelines’ use. There must be meaningful internal and external checks on the vast powers the FBI have been granted. The following recommendations would accomplish this goal:

Restore the requirements of prior approval for initiating, conducting, and continuing or extending investigations.

Require records of prior approval to be in writing and kept on record.

Implement a robust system of oversight and review of the Guidelines’ implementation and efficacy within the Justice Department.

Congress also should exercise vigorously its oversight powers—through oversight hearings or by tasking the General Accounting Office with responsibility for conducting audits of the FBI’s use of the Guidelines—to police the FBI’s use of its authorities.

Substantive Recommendations

Prohibit the FBI from using highly intrusive investigative techniques unless there is some basis in fact to suspect wrongdoing.

Require agents to use the least intrusive investigative technique that is likely to prove effective.

The time to act is now—before the Guidelines result in widespread and unwarranted intrusions into Americans’ privacy, harmful religious and ethnic profiling, and the divergence of scarce resources to ineffective and indis¬criminate collection of information.

The changes recommended above will go a long way to reduce the risk of excesses that the current Guidelines permit. They would reinvigorate the substantive standards on which investigative activity should be predicated and would ensure that intrusive investigative methods are used only when necessary. And they would impose internal and external checks to guarantee the lawful, effective use of the powers conferred on federal agents. In short, they would safeguard Americans’ rights of privacy, free expression, association, and religion as well as help to focus investigative activity where there are indications of threats. The result will be a safer, more just America.

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ABOUT THE AUTHOR

Emily Berman is Counsel in the Liberty and National Security Program at the Brennan Center for Justice. She works through litigation, advocacy, and scholarship to promote rights-protecting and effective oversight of United States national security policy. Before joining the Brennan Center, Ms. Berman was at New York University School of Law pursuing her LL.M. in International Law. She clerked for Judge John M. Walker of the Second Circuit Court of Appeals and graduated magna cum laude from New York University School of Law (2005).

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The Brennan Center recently hosted a panel discussion on Capitol Hill about the FBI’s expanded domestic intelligence authority. Moderating the discussion was NBC’s Michael Isikoff. On the panel was Rep. Rush Holt and the Center’s Emily Berman.

A video clip from the panel is below. You can also view the entire video here.